My View: 40B, or not 40B?

It’s easy enough to lay blame at the feet of the Newton Villages Alliance and like-minded local organizations for Newton’s abysmal recent record of approving more diverse and affordable housing.

Indeed, the NVA and similar groups have, quite successfully, sounded the alarm against “up-zoning” and what they believe is the encroachment of urban density into the Garden City. Any regular reader of this column knows how much I disagree with them, but they have a right to their opinion about what type of community we should be moving forward.

Here’s what troubles me, however: This sizeable anti-development movement is being enabled by a city government that on one hand has a “housing strategy” but on the other has taken a position that makes achieving the goals of the plan extraordinarily difficult.

It was just over a couple years ago that the Planning Department, based on GIS data, asserted the city had surpassed the land mass threshold of Chapter 40B, the state’s affordable housing law. In other words, the city claims it has affordable housing on enough “developable” land (at least 1.5 percent; the city claims 1.8 percent) to exempt it from Chapter 40B. The Zoning Board of Appeals has since invoked this so-called “safe harbor” each time a developer tries to make use of 40B to build an even moderately sized apartment complex here. In the past two years, the ZBA has used the “safe harbor” claim to undermine multi-unit developments in Auburndale, in the Highlands and in Waban.

This, while the mayor and his Planning Department encourage denser development that would cater to the housing needs of many: those with modest incomes, senior citizens and young professionals. Critically, City Hall also recognizes the importance of creating foot traffic in and around village centers to keep those local businesses strong.

So why adopt policies that contradict one another?

Frankly, Chapter 40B is flawed, especially as it affects smaller communities in the state. But in Newton, where many seem to want no growth at all, what other way is there to get anything other than a huge new home built? (Not that there’s anything wrong with that.)

Case in point: Washington Place. About two years ago Robert Korff and his company Mark Development purchased a city block overlooking the Pike on Washington Street in Newtonville. They proposed a six-story, mixed-use project that would include more than 150 apartments and ground floor retail. After hearing public feedback, the developer scaled back the project’s height to four and five stories and, following the acquisition of contiguous property, increased the commercial space and the amount of affordable housing, specifically units reserved for middle-class, "workforce" tenants. The developer also pledged amenities including community space. All in all, a good deal.

Still, the revised plan was met with what has become inevitable opposition. Enough abutters were recruited to sign a petition, which eventually mandated that an 18-vote mega-majority of the 24-member City Council would be required to approve rezoning from business to mixed use. With several councilors immovable, Mark Development announced late last month it would withdraw the application from the council and move forward with a larger 40B project. And, of course, the city claims it doesn’t have to abide by 40B.

So here we are, in Newton, where the state of housing development is utterly dysfunctional.

Lately there has been discussion about restricting the MU4 rezoning to only the Washington Street section of what is popularly known as the Orr block. That, in theory, would nullify the need for an 18-vote majority and require only the normal 16 for approval. But whether that works for the developer, or not, remains to be seen. Only a special City Council meeting Monday will tell more about how Washington Place proceeds.

The point here is not only that housing diversification and economic growth is being stifled by those who wish for Newton to stand still: this anti-development movement is being empowered by the city’s claim it has met the requirements of 40B. Mark Development has been handcuffed by a few-dozen abutters and so feels compelled to proceed via the affordable housing law? Don’t worry, those of you who probably wouldn’t mind if the decaying Orr block buildings stood for another century — the city has your back.

That is correct: the same city government that promotes smart growth.

To date, the state’s Department of Housing and Community Development and its Housing Appeals Committee have rejected the city’s claim it has a right to “safe harbor” — in several cases. That’s to be expected, as those agencies tend to side with developers in defense of Chapter 40B. But many with expertise in the matter who have scrutinized the city’s case consider it a weak one that is unlikely to be upheld in court. In the meantime, several developers have either abandoned or dramatically downsized their 40B projects, rather than pursue a lengthy and expensive fight in court. Robert Korff, it appears, is ready to invest that time and treasure in such a battle.

In the meantime, there is what can only be described as a disjointed message coming from City Hall and the ZBA.